On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A73 489 747) Argued March 10, 1998
Before: Greenberg, Scirica and Aldisert, Circuit Judges
The opinion of the court was delivered by: Scirica, Circuit Judge.
Aravinthan Balasubramanrim petitions for review of an order of the Board of Immigration Appeals denying his application for asylum and withholding of deportation. The Board, with one member Dissenting, found Balasubramanrim's testimony before the immigration Judge was not credible because it was inconsistent with information he gave to Immigration and Naturalization Service officials at the airport upon entry into the United States. Because this credibility finding was not supported by substantial evidence, we will grant the petition.
Balasubramanrim, a Sri Lankan citizen of Tamil ethnicity, was born on February 19, 1969, in a province in the northern part of Sri Lanka. In support of his asylum and withholding of deportation application, he submitted substantial documentary evidence concerning recent political and social developments in Sri Lanka. This documentary evidence supports his claim that some Tamils in Sri Lanka are subject to mistreatment at the hands of both government and anti-government forces.
Since 1987, civil unrest has disrupted life in Sri Lanka. The conflict stems primarily from tensions between the minority Tamils and the majority Sinhalese.*fn1 In an effort to establish an independent Tamil state in the north, the Liberation Tigers of Tamil Eelam have been in armed conflict with the government and Indian peacekeeping forces since 1987.*fn2 Although the Liberation Tigers have succeeded in controlling much of the Northern Province and parts of the Eastern Province, not all Tamils support them. In fact, the Eelam People's Democratic Party, the People's Liberation Organization of Tamil Eelam and the Tamil Eelam Liberation Organization all cooperate with the government security forces.
Since the conflict erupted, both government forces and Liberation Tiger rebels have committed human rights violations. According to a 1995 report of the State Department's Bureau of Human Rights and Humanitarian Affairs, both sides mistreat prisoners and arrest suspected opponents on an arbitrary basis. Young male Tamils like Balasubramanrim are most often the target of this abuse. According to the State Department, most Sri Lankan asylum claimants in the United States are Tamil males between the ages of 20 and 36, and they generally allege mistreatment at the hands of the Sri Lankan authorities and the Liberation Tigers.
In his application for asylum, Balasubramanrim claims he was a victim of these abuses and that if he returns to Sri Lanka he will again be persecuted. Balasubramanrim claims to have been arrested, detained, and tortured on several occasions by the armed forces of the Sri Lankan government, the Indian peacekeeping forces, and the Liberation Tigers. Specifically, in his application, Balasubramanrim described the following events: (1) In March 1988, he was arrested by the Indian peacekeeping forces and taken to a camp where he was accused of being a "Tiger" and beaten; (2) in November 1989, he was again arrested (the administrative record is unclear on who arrested him) because he refused to join the ranks of one of the political fighting forces, was tortured for an entire day, and remained in custody for five days; (3) in March 1990, the Tigers arrested him for 10 days and accused him of being an informant for the Indian Peacekeeping Forces, a charge which he claims was untrue; (4) in 1991, his brother disappeared after being arrested by the Sri Lankan army; (5) in 1993, his father was killed by Sri Lankan air bombs; (6) in October 1993, he fled northern Sri Lanka but was arrested for failing to register in the new area; (7) also in October 1993, after accusing Balasubramanrim of being a Tiger, the Sri Lankan army arrested, detained, and tortured him for one year and ten days; eventually, his wife bribed the army for his release; (8) in late 1994, Sri Lankan armed forces arrested him at the airport as he was trying to leave the country with his family, and he was detained and tortured for four months and ten days.*fn3
Shortly thereafter, Balasubramanrim left Sri Lanka by using a false Canadian passport. He went to Singapore, then Malaysia, then London, and finally to the United States. Balasubramanrim arrived at John F. Kennedy Airport on April 6, 1995. Upon arrival, INS officers interviewed him in English without a translator. The only record we have of this interview is a document consisting of 25 hand-printed questions and answers. We do not know how the interview was conducted or how the document was prepared. The transcript reads in part:
(3) Q. When and where were you born? A. 2/19/69 Jaffna, Sri Lanka.
(7) Q. Why are you coming to the U.S. today? A. today I am going to Toronto
(13) Q. What was your occupation in Sri Lanka? A. I owned a grocery market.
(14) Q. So if you owned a grocery market why are you going to Toronto? A. I go for two months to visit my family and I go back to Sri Lanka. No I stay in Toronto.
(15) Q. Why will you stay in Toronto and not go back to Sri Lanka? A. I go to jail if I go back to Sri Lanka - I have problems with LTT - Liberation Tigers of Tamil and Sri Lanka government an police and military because I have business problems and my brother plots against the government.
(17) Q. What would happen if you returned to Sr i Lanka? A. The will kill me.
(18) Q. How did you get to the U.S. from Sri La nka? A. I left Sri Lanka one month ago - first I went to Singapore for 15 days then to Malaysia for 14 days - then to London for 1 day - then to here.
(22) Q. Have you or anyone in your family ever been arrested?
A. my brother, military and police arrested him - for being with a group of people - I ...